Navigating the New Normal of California’s Civil Litigation

Hon. Carl J. West (Ret.) is a JAMS neutral specializing in complex case management, e-discovery and civil procedure. He can be reached at cwest@jamsadr.com.

California’s cash-strapped civil courts are facing dramatically reduced resources, staff reductions at all levels and courtroom closures.

As a result of this new normal, litigants will likely see significant delays in calendaring demurrers and summary judgment motions. Average time to trial for all civil cases is rising. These delays increase cost pressures and may force clients into making decisions about their cases that have nothing to do with the legal merits, but everything to do with time and money. This is not justice at work.

Adopting the following efficient case management practices, many of which complex courts across the state have already embraced, has the potential to save time and money and counteract the impacts of the crisis facing our courts.

Reconsider filing, pleading and hearing strategies.

Pleading challenges, such as demurrers and motions to strike, often do little else other than defer for six months the parties’ and the court’s attention to significant issues in a case. Unnecessary delays can be avoided with meaningful meet-and-confer processes in which defendants identify perceived deficiencies in the pleadings, and plaintiffs are afforded opportunities to amend. As an alternative, the parties may stipulate to obtaining orders that permit defendants to answer and raise as affirmative defenses all matters that could or must otherwise be raised by demurrer or motion to strike, without prejudice to any such defenses.

Developing issue-oriented approaches to pleading challenges that facilitate early appellate review of significant issues will also lead to significant efficiencies and economies because burdensome discovery and law and motion practice may be deferred or rendered unnecessary.

Early designation of experts in appropriate cases, followed by Cottle or Daubert-type hearings, will frame issues and often lead to early case resolution or appellate review of potentially case dispositive issues.

Collaborative approach to discovery.

Collaborating with opposing counsel in vetting proposed discovery will often avoid boilerplate objections and needless discovery motions. If counsel engage in a meaningful meet-and-confer process with respect to proposed discovery, as well as discovery responses, often issues can be presented to the court for determination upon the filing of a joint statement as an alternative to traditional motion practice. Developing protocols for e-discovery is also an effective means of streamlining the process and avoiding the expense and burden of failed or deficient productions of electronically stored information.

The role of ADR.

Courts and counsel must recognize that some complex cases require management and structure to place them in a position for alternative dispute resolution through mediation or settlement conferences. In the face of fewer judges handling civil cases, litigants and counsel should consider stipulating all-purpose references pursuant to Code of Civil Procedure Section 638 or appointment of a temporary judge under Article 6, Section 21 of the state constitution. Such an approach can preserve appellate review and insure timely and hands-on management of a case by a retired judge or lawyer in which all parties and counsel have confidence.

The budget crisis presents civil justice with several procedural roadblocks, but none that can’t be navigated with adaptation and collaboration. Through utilizing time- and money-saving case management practices, attorneys can navigate the “new normal” of California’s courts while also becoming more effective and efficient advocates for their clients.